A Wall Is Really A Window: “Routine Maintenance” Re-Visited

Labor Law § 240(1), also known as the Scaffold Law, places absolute liability on owners and general contractors to provide a safe work environment to prevent accidents that flow from the risk of performing work from elevated heights.  Section 240(1) specifically enumerates activities under its protection, which includes commercial window washing, but not routine cleaning.  But the courts have long struggled with the concept of what constitutes “routine maintenance.”

In Declercq v. WWP Off., LLC, plaintiff was washing the walls and window ledges inside a subway station.  The job entailed using a ladder to apply a cleanser, letting it soak, then again using a ladder to hose down the area.  The plaintiff was hosing down the area when the ladder kicked out from underneath him, causing him to fall 20 feet and sustain injuries.

The plaintiff argued that because cleaning is specifically enumerated as a protected activity under Labor Law § 240(1), and he was not provided any safety device to prevent him from falling, the defendant building owner is liable under § 240(1).  The defendant argued that they are not liable under § 240(1) because the plaintiff was involved in routine cleaning.  The cleaning was routine because the plaintiff was cleaning the walls and window ledges, and not the windows.  The court disagreed and held that the plaintiff was not performing routine cleaning because he was not cleaning residential or household buildings.  And, cleaning under § 240(1) is not limited to cleaning windows.  Section 240(1) protects workers while cleaning when it involves an elevated height without the proper safety equipment, which the court found is exactly what happened in this case.

Declercq makes plain that where the worker requires a ladder (or works from a height),  the marked judicial trend is to find 240(1) applicable even if the task is as mundane as washing walls.

Thanks to Anne Mulcahy for her contribution to this post.  For more information, please email Dennis Wade at dwade@wcmlaw.com.